dissenting.
I am unable to concur in the majority opinion in this case, for the. reason that to my mind the undisputed facts show such gross contributory negligence on the part of the plaintiff as should prevent a recovery. The effect of this opinion is to overrule Omaha & R. V. R. Co. v. Talbot, 48 Neb. 627; Guthrie v. Missouri P. R. do., 51 Neb. 746; Chicago, B. & Q. R. Co. v. Pollard, 53 Neb. 730; Brady v. Chicago, St. P., M. & O. R. Co., 59 Neb. 233, and many other cases. By our judgment we make a railroad company an absolute insurer of the safety of pedestrians at its grade crossings.
I am of opinion that we should hold, in this case, that the plaintiff’s conduct in not looking or listening for the approach of the defendant’s train for the distance of 35 feet while approaching the crossing where the accident occurred, and by deliberately stepping onto the railroad track in front of the oncoming train, and at the instant it reached the crossing where there was an unobstructed view of the track, in the direction from which the train approached, of from 400 to 500 feet, should be held to be contributory negligence, as a matter of law.
The judgment of the trial court should be reversed and the cause dismissed.